Avoiding Confrontation

46 Pages Posted: 17 Feb 2010 Last revised: 7 Mar 2011

See all articles by Mark Egerman

Mark Egerman

Georgetown University Law Center

Date Written: March 1, 2011


This article takes seriously Justice Scalia’s aside in Giles v. California and examines whether there should be a separate confrontation doctrine for domestic violence cases. The history of Confrontation is explored, starting with one of its predecessors, the judicial duel. Dueling served as a judicial fact-finder for centuries and developed a complex series of regulations that focused not only on accuracy, but also on the status of the participants. As the doctrine of confrontation developed, it retained some of the substantive status-oriented elements of dueling. An analysis of major cases from the Common Law and the Supreme Court tracks these developments and uncovers these elements. Modern confrontation doctrine is shown to embody non-adjudicatory elements concerned with status and social power.

These elements imagine a series of relationships between accuser and accused that do not adequately address the concerns reflected in Domestic Violence situations. This helps explain why recent confrontation clause decisions have presented such a serious challenge to effective prosecution of these crimes.

While most scholars addressing these concerns contend that the Court misinterpreted the Confrontation Clause, this article argues that the Court may very well be right. Indeed, confrontation doctrine may pose a problem that cannot be reconciled through traditional means. The article concludes by proposing a legislative solution, whereby Congress could return to states the ability to successfully adjudicate domestic violence cases in state courts.

Keywords: Evidence, Confrontation Clause, Domestic Violence, Duel

JEL Classification: K10

Suggested Citation

Egerman, Mark, Avoiding Confrontation (March 1, 2011). Available at SSRN: https://ssrn.com/abstract=1553455 or http://dx.doi.org/10.2139/ssrn.1553455

Mark Egerman (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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